J-A23007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH LOOMIS AND JANAN 

LOOMIS, INDIVIDUALLY AND AS 

ADMINISTRATORS OF THE ESTATE 

OF LEAH LOOMIS, DECEASED 

Appellants

v.

MIA BOMBA, GINA BOMBA, WILLIAM 

FARBER, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 367 MDA 2021

Appeal from the Judgment Entered March 15, 2021

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2018-00930

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

DISSENTING STATEMENT BY STEVENS, P.J.E.: FILED: DECEMBER 1, 2021

I respectfully dissent from the Majority’s disposition in this matter. My 

review of the record simply does not support the Majority’s conclusion that 

Appellants were not prejudiced by the trial court’s failure to instruct the jury 

on the pertinent standards adopted by the Pennsylvania Fish and Boat 

Commission (“PFBC”) in the Pennsylvania Boating Handbook.

Quite the contrary, although the record reflects that the trial court 

quoted some of the language in the Pennsylvania Boating Handbook in 

charging the jury in conjunction with Pa. SSJI (Civ.) §§ 13.110, there was no 

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* Former Justice specially assigned to the Superior Court.
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specific mention of the standard that boat operators are responsible for 

their boat’s wake and any damage caused by it. See Notes of Testimony, 

10/9/20 at 9-12; see also Appellants’ brief at 26, Proposed Point of Charge 

No. 4.

This court has long recognized that “[t]he primary duty of the trial judge 

in charging the jury is to clarify the legal principles involved so that the jury 

may comprehend the questions that it must decide.” Sehl v. Vista Linen 

Rental Serv. Inc., 763 A.2d 858, 863 (Pa.Super. 2000) (citation omitted).

“[W]hen the charge as a whole is inadequate or not clear or has a tendency 

to mislead or confuse, rather than clarify a material issue, that error in a 

charge will be found to be a sufficient basis for the award of a new trial.” 

Salsgiver Communications, Inc. v. Consol. Communications Holdings, 

Inc., 150 A.3d 957, 962 (Pa.Super. 2016) (citations and internal brackets 

omitted).

As discussed, Appellants rely on this court’s decision in Wood v. Smith, 

495 A.2d 601 (Pa.Super. 1985), appeal dismissed as improvidently 

granted, 518 A.2d 266 (Pa. 1986). Wood involved an action for trespass 

and wrongful death against a contractor who had erected scaffolding outside 

the decedent’s home that ultimately led to his death. Id. at 602. The Wood

court found that the issue of defendants’ negligent construction of the 

scaffolding was central to this case, and the trial court should have instructed 

the jury regarding the legal significance of government and industry standards
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applicable to the scaffolding’s construction, including OSHA1 and ANSI,2 which

were presented as evidence at trial. Id. at 603. In reaching this conclusion, 

the Wood court reasoned that “[w]ithout further explanation, the jury may 

very reasonably have assumed that since the defendants were not required 

by law to adhere to the OSHA or ANSI standard, their failure to do so was 

irrelevant.” Id. at 603-604.

Instantly, the issue of Appellee Mia Bomba’s negligent operation of the 

motorboat and her failure to adhere to the standards adopted by the PFBC in 

the Pennsylvania Boating Handbook was central to this case. 

At trial, both parties’ experts acknowledged that the responsibilities of 

a person operating a watercraft in this Commonwealth are set forth in the 

Pennsylvania Boating Handbook. Specifically, Appellants’ expert, Captain Kyle 

McAvoy, testified that the Pennsylvania Boating Handbook requires that boat 

operators must be aware of and are responsible for their wake speed. Notes 

of Testimony, 10/6/20 at 23. Likewise, Appellees’ own expert, Captain 

Stephen Richter, acknowledged that Bomba’s responsibilities as a licensed 

boat operator were “outlined in the Pennsylvania Safe Boating Handbook” and 

included, inter alia, being responsible for the boat’s wake and any damage 

caused by it. Notes of Testimony, 10/8/20 at 30, 45.

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1 Occupational Health and Safety Act.

2 American National Standards Institute.
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Based on the foregoing, Appellants have demonstrated that the jury 

instruction in this case was inadequate as to the standard of care Appellee 

Bomba owed to decedent. Appellants clearly suffered prejudice on account of 

the trial court’s failure to charge the jury that boat operators are responsible 

for the boat’s wake and any damage caused by it. 

Just as in Wood, such failure of the trial court to properly instruct the 

jury in this matter may have very well led the jury to incorrectly conclude that 

Appellee Bomba was not required by law to adhere to the industry standards 

memorialized in the Pennsylvania Boating Handbook. See Wood, 495 A.2d 

at 603-604.

Accordingly, I would find that the trial court abused its discretion in

instructing the jury, would reverse the judgment entered in favor of Appellees, 

and remand for a new trial. Therefore, I respectfully dissent.